Satya Narain Yadav Vs Gajanand

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 305 OF 2001

Satya Narain Yadav …Appellant

Versus

Gajanand and Anr. …Respondents

(With Criminal Appeal No. 999 of 2001)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. These two appeals are directed against the judgment of a

Division Bench of the Rajasthan High Court directing acquittal

of respondent Gajanand. One appeal has been filed by the

informant while the other has been filed by the State. The trial

Court i.e. learned Additional Sessions Judge, No.2, Bundi,

Rajasthan, had convicted Gajanand for offence punishable

under Section 302 of the Indian Penal Code, 1860 (in short

the ‘IPC’) and sentenced to undergo rigorous imprisonment for

life and to pay a fine of Rs.2,000/- with default stipulation.

Co-accused Mahavir was, however, acquitted.

2. Background facts in a nutshell are as follows:

Kana (PW-13) lodged a First Information Report (Ext.P-2)

that while he and his brother Devi Lal (hereinafter referred to

as ‘deceased’) were working in the field, respondent No.1-

Gajanand and Mahavir objected to it and caused injury to

him. It was stated that Gajanand was having an axe in his

hand and he caused injuries to Devi Lal on his head. Earlier, a

case under Section 307 IPC was registered but on the death of

Devi Lal charge under Section 302 IPC was added. After

completion of investigation, challans were submitted against

Gajanand and Mahavir.

3. As appears from the first information report the

informant had stated that while they were harvesting the

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wheat at the agricultural land in the morning two cow boys

were grazing their goats. When loss was caused to the crops,

Devi Lal asked them not to do so. They insisted that goats

would be grazed and their names were Gajanand and

Mahavir. When Devi Lal further asked them not to do so,

Gajanand gave a blow of axe on the left side of his head and

the deceased fell down. Thereafter, Mahavir assaulted with

fists and the handle of the axe. Thereafter both of them fled

away.

4. Charge sheet under Section 302 as well as under Section

302 read with Section 149 was filed separately against

accused persons. The accused persons pleaded innocence.

Sixteen witnesses were examined to further the prosecution

version. Kana (PW-13) was stated to be an eye-witness. The

Trial Court found Gajanand guilty of offence punishable under

Section 302 IPC. Mahavir, as noted above, was acquitted.

Present respondent preferred an appeal before the High Court

which by the impugned judgment set aside the conviction.

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5. The accused had taken the stand during trial that when

Mahavir was trying to drive out the goat which entered into

the field of Devi Lal, he was given beatings by the deceased

and two lathi blows were inflicted on him. When Gajanand

came to his rescue, he was also addressed in contemptuous

manner and was given two lathi blows.

6. It was stated that by exercising the right of private

defence, two blows were given by Gajanand and, therefore, the

accused person cannot be convicted. The High Court has

accepted this stand of the accused and held that the right of

private defence is available.

7. In support of the appeal filed by the State and the

informant it is submitted that the trial Court has erroneously

held that the accused were exercising the right of private

defence.

8. Learned counsel for the accused-Gajanand submitted

that when injury was caused by lathi not only on Mahavir but

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also to Gajanand-respondent, it cannot be said that they were

not exercising the right of private defence. In any event,

according to him, if parameters of appeal against acquittal are

kept in view, no interference is called for.

9. Only question which needs to be considered is the

alleged exercise of right of private defence. Section 96, IPC

provides that nothing is an offence which is done in the

exercise of the right of private defence. The Section does not

define the expression ‘right of private defence’. It merely

indicates that nothing is an offence which is done in the

exercise of such right. Whether in a particular set of

circumstances, a person legitimately acted in the exercise of

the right of private defence is a question of fact to be

determined on the facts and circumstances of each case. No

test in the abstract for determining such a question can be

laid down. In determining this question of fact, the Court

must consider all the surrounding circumstances. It is not

necessary for the accused to plead in so many words that he

acted in self-defence. If the circumstances show that the right

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of private defence was legitimately exercised, it is open to the

Court to consider such a plea. In a given case the Court can

consider it even if the accused has not taken it, if the same is

available to be considered from the material on record. Under

Section 105 of the Indian Evidence Act, 1872 (in short ‘the

Evidence Act’), the burden of proof is on the accused, who sets

up the plea of self-defence, and, in the absence of proof, it is

not possible for the Court to presume the truth of the plea of

self-defence. The Court shall presume the absence of such

circumstances. It is for the accused to place necessary

material on record either by himself adducing positive

evidence or by eliciting necessary facts from the witnesses

examined for the prosecution. An accused taking the plea of

the right of private defence is not necessarily required to call

evidence; he can establish his plea by reference to

circumstances transpiring from the prosecution evidence

itself. The question in such a case would be a question of

assessing the true effect of the prosecution evidence, and not

a question of the accused discharging any burden. Where the

right of private defence is pleaded, the defence must be a

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reasonable and probable version satisfying the Court that the

harm caused by the accused was necessary for either warding

off the attack or for forestalling the further reasonable

apprehension from the side of the accused. The burden of

establishing the plea of self-defence is on the accused and the

burden stands discharged by showing preponderance of

probabilities in favour of that plea on the basis of the material

on record. (See Munshi Ram and Ors. v. Delhi Administration

(AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975

SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC

2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC

577). Sections 100 to 101 define the extent of the right of

private defence of body. If a person has a right of private

defence of body under Section 97, that right extends under

Section 100 to causing death if there is reasonable

apprehension that death or grievous hurt would be the

consequence of the assault. The oft quoted observation of this

Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as

follows:

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“It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence.”

10. The accused need not prove the existence of the right of

private defence beyond reasonable doubt. It is enough for him

to show as in a civil case that the preponderance of

probabilities is in favour of his plea.

11. A plea of right of private defence cannot be based on

surmises and speculation. While considering whether the right

of private defence is available to an accused, it is not relevant

whether he may have a chance to inflict severe and mortal

injury on the aggressor. In order to find whether the right of

private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting.

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Section 97 deals with the subject matter of right of private

defence. The plea of right comprises the body or property (i) of

the person exercising the right; or (ii) of any other person; and

the right may be exercised in the case of any offence against

the body, and in the case of offences of theft, robbery, mischief

or criminal trespass, and attempts at such offences in relation

to property. Section 99 lays down the limits of the right of

private defence. Sections 96 and 98 give a right of private

defence against certain offences and acts. The right given

under Sections 96 to 98 and 100 to 106 is controlled by

Section 99. To claim a right of private defence extending to

voluntary causing of death, the accused must show that there

were circumstances giving rise to reasonable grounds for

apprehending that either death or grievous hurt would be

caused to him. The burden is on the accused to show that he

had a right of private defence which extended to causing of

death. Sections 100 and 101, IPC define the limit and extent

of right of private defence.

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12. Sections 102 and 105, IPC deal with commencement and

continuance of the right of private defence of body and

property respectively. The right commences, as soon as a

reasonable apprehension of danger to the body arises from an

attempt, or threat, to commit the offence, although the offence

may not have been committed but not until there is that

reasonable apprehension. The right lasts so long as the

reasonable apprehension of the danger to the body continues.

In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was

observed that as soon as the cause for reasonable

apprehension disappears and the threat has either been

destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.

13. In order to find whether right of private defence is

available or not, the injuries received by the accused, the

imminence of threat to his safety, the injuries caused by the

accused and the circumstances whether the accused had time

to have recourse to public authorities are all relevant factors

to be considered. Similar view was expressed by this Court in

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Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan

Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja

Sekharan v. State represented by Inspector of Police, T.N.

(2002 (8) SCC 354).

14. As noted in Butta Singh v. The State of Punjab (AIR 1991

SC 1316), a person who is apprehending death or bodily

injury cannot weigh in golden scales in the spur of moment

and in the heat of circumstances, the number of injuries

required to disarm the assailants who were armed with

weapons. In moments of excitement and disturbed mental

equilibrium it is often difficult to expect the parties to preserve

composure and use exactly only so much force in retaliation

commensurate with the danger apprehended to him where

assault is imminent by use of force, it would be lawful to repel

the force in self-defence and the right of private-defence

commences, as soon as the threat becomes so imminent.

Such situations have to be pragmatically viewed and not with

high-powered spectacles or microscopes to detect slight or

even marginal overstepping. Due weightage has to be given

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to, and hyper technical approach has to be avoided in

considering what happens on the spur of the moment on the

spot and keeping in view normal human reaction and

conduct, where self-preservation is the paramount

consideration. But, if the fact situation shows that in the

guise of self-preservation, what really has been done is to

assault the original aggressor, even after the cause of

reasonable apprehension has disappeared, the plea of right of

private-defence can legitimately be negatived. The Court

dealing with the plea has to weigh the material to conclude

whether the plea is acceptable. It is essentially, as noted

above, a finding of fact.

15. The right of self-defence is a very valuable right, serving a

social purpose and should not be construed narrowly. (See

Vidhya Singh v. State of M.P. (AIR 1971 SC 1857). Situations

have to be judged from the subjective point of view of the

accused concerned in the surrounding excitement and

confusion of the moment, confronted with a situation of peril

and not by any microscopic and pedantic scrutiny. In

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adjudging the question as to whether more force than was

necessary was used in the prevailing circumstances on the

spot it would be inappropriate, as held by this Court, to adopt

tests by detached objectivity which would be so natural in a

Court room, or that which would seem absolutely necessary to

a perfectly cool bystander. The person facing a reasonable

apprehension of threat to himself cannot be expected to

modulate his defence step by step with any arithmetical

exactitude of only that much which is required in the thinking

of a man in ordinary times or under normal circumstances.

16. In the illuminating words of Russel (Russel on Crime,

11th Edition Volume I at page 49):

“....a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable.”

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17. The right of private defence is essentially a defensive

right circumscribed by the governing statute i.e. the IPC,

available only when the circumstances clearly justify it. It

should not be allowed to be pleaded or availed as a pretext for

a vindictive, aggressive or retributive purpose of offence. It is

a right of defence, not of retribution, expected to repel

unlawful aggression and not as retaliatory measure. While

providing for exercise of the right, care has been taken in IPC

not to provide and has not devised a mechanism whereby an

attack may be a pretence for killing. A right to defend does not

include a right to launch an offensive, particularly when the

need to defend no longer survived.

18. The above position was highlighted in V. Subramani and

Anr. vs. State of Tamil Nadu (2005 (10) SCC 358) and Genda

Singh and Ors. v. State of U.P. (Criminal Appeal arising out of

SLP (Crl.) No.1029/07 disposed of on July 9, 2008).

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19. It also would be necessary and proper to consider and

clarify the legal position first. Chapter XXIX (Sections 372-394) of

the Code of Criminal Procedure, 1973 (hereinafter referred to as

“the present Code”) deals with appeals. Section 372 expressly

declares that no appeal shall lie from any judgment or order of a

criminal court except as provided by the Code or by any other

law for the time being in force. Section 373 provides for filing of

appeals in certain cases. Section 374 allows appeals from

convictions. Section 375 bars appeals in cases where the

accused pleads guilty. Likewise, no appeal is maintainable in

petty cases (Section 376). Section 377 permits appeals by the

State for enhancement of sentence. Section 378 confers power on

the State to present an appeal to the High Court from an order of

acquittal. The said section is material and may be quoted in

extenso:

“378. Appeal in case of acquittal.—(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High

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Court, or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub-section (2).

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20. Whereas Sections 379-380 cover special cases of appeals,

other sections lay down procedure to be followed by appellate

courts.

21. It may be stated that more or less similar provisions were

found in the Code of Criminal Procedure, 1898 (hereinafter

referred to as “the old Code”) which came up for consideration

before various High Courts, Judicial Committee of the Privy

Council as also before this Court. Since in the present appeal, we

have been called upon to decide the ambit and scope of the

power of an appellate court in an appeal against an order of

acquittal, we have confined ourselves to one aspect only i.e. an

appeal against an order of acquittal.

22. Bare reading of Section 378 of the present Code (appeal in

case of acquittal) quoted above, makes it clear that no

restrictions have been imposed by the legislature on the powers

of the appellate court in dealing with appeals against acquittal.

When such an appeal is filed, the High Court has full power to

reappreciate, review and reconsider the evidence at large, the

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material on which the order of acquittal is founded and to reach

its own conclusions on such evidence. Both questions of fact and

of law are open to determination by the High Court in an appeal

against an order of acquittal.

23. It cannot, however, be forgotten that in case of acquittal,

there is a double presumption in favour of the accused. Firstly,

the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every

person should be presumed to be innocent unless he is proved to

be guilty by a competent court of law. Secondly, the accused

having secured an acquittal, the presumption of his innocence is

certainly not weakened but reinforced, reaffirmed and

strengthened by the trial court.

24. Though the above principles are well established, a different

note was struck in several decisions by various High Courts and

even by this Court. It is, therefore, appropriate if we consider

some of the leading decisions on the point.

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25. The first important decision was rendered by the Judicial

Committee of the Privy Council in Sheo Swarup v. R. Emperor

(1934) 61 IA 398). In Sheo Swarup the accused were acquitted

by the trial court and the local Government directed the Public

Prosecutor to present an appeal to the High Court from an order

of acquittal under Section 417 of the old Code (similar to Section

378 of the present Code). At the time of hearing of appeal before

the High Court, it was contended on behalf of the accused that in

an appeal from an order of acquittal, it was not open to the

appellate court to interfere with the findings of fact recorded by

the trial Judge unless such findings could not have been reached

by him had there not been some perversity or incompetence on

his part. The High Court, however, declined to accept the said

view. It held that no condition was imposed on the High Court in

such appeal. It accordingly reviewed all the evidence in the case

and having formed an opinion of its weight and reliability

different from that of the trial Judge, recorded an order of

conviction. A petition was presented to His Majesty in Council for

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leave to appeal on the ground that conflicting views had been

expressed by the High Courts in different parts of India upon the

question whether in an appeal from an order of acquittal, an

appellate court had the power to interfere with the findings of

fact recorded by the trial Judge. Their Lordships thought it fit to

clarify the legal position and accordingly upon the “humble

advice of their Lordships”, leave was granted by His Majesty. The

case was, thereafter, argued. The Committee considered the

scheme and interpreting Section 417 of the Code (old Code)

observed that there was no indication in the Code of any

limitation or restriction on the High Court in exercise of powers

as an Appellate Tribunal. The Code also made no distinction as

regards powers of the High Court in dealing with an appeal

against acquittal and an appeal against conviction. Though

several authorities were cited revealing different views by the

High Courts dealing with an appeal from an order of acquittal,

the Committee did not think it proper to discuss all the cases.

26. Lord Russel summed up the legal position thus:

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“There is, in their opinion, no foundation for the view, apparently supported by the judgments of some courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has ‘obstinately blundered’, or has ‘through incompetence, stupidity or perversity’ reached such ‘distorted conclusions as to produce a positive miscarriage of justice’, or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.”

27. His Lordship, then proceeded to observe: (IA p.404)

“Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code.”

28. The Committee, however, cautioned appellate courts and

stated: (IA p.404)

“But in exercising the power conferred by the Code and before reaching its conclusions upon

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fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.”

(emphasis supplied)

29. In Nur Mohd. v. Emperor (AIR 1945 PC 151), the Committee

reiterated the above view in Sheo Swarup (Supra) and held that in

an appeal against acquittal, the High Court has full powers to

review and to reverse acquittal.

30. So far as this Court is concerned, probably the first decision

on the point was Prandas v. State (AIR 1954 SC 36) (though the

case was decided on 14-3-1950, it was reported only in 1954). In

that case, the accused was acquitted by the trial court. The

Provincial Government preferred an appeal which was allowed

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and the accused was convicted for offences punishable under

Sections 302 and 323 IPC. The High Court, for convicting the

accused, placed reliance on certain eyewitnesses.

31. Upholding the decision of the High Court and following the

proposition of law in Sheo Swarup (supra), a six-Judge Bench

held as follows:

“6. It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal Procedure Code, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate court has in some way or other misdirected itself so as to produce a miscarriage of justice.”

(emphasis supplied)

32. In Surajpal Singh v. State (1952 SCR 193), a two-Judge

Bench observed that it was well established that in an appeal

under Section 417 of the (old) Code, the High Court had full

power to review the evidence upon which the order of acquittal

was founded. But it was equally well settled that the

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presumption of innocence of the accused was further reinforced

by his acquittal by the trial court, and the findings of the trial

court which had the advantage of seeing the witnesses and

hearing their evidence could be reversed only for very substantial

and compelling reasons.

33. In Ajmer Singh v. State of Punjab (1953 SCR 418) the

accused was acquitted by the trial court but was convicted by

the High Court in an appeal against acquittal filed by the State.

The aggrieved accused approached this Court. It was contended

by him that there were “no compelling reasons” for setting aside

the order of acquittal and due and proper weight had not been

given by the High Court to the opinion of the trial court as

regards the credibility of witnesses seen and examined. It was

also commented that the High Court committed an error of law

in observing that “when a strong ‘prima facie’ case is made out

against an accused person it is his duty to explain the

circumstances appearing in evidence against him and he cannot

take shelter behind the presumption of innocence and cannot

state that the law entitles him to keep his lips sealed”.

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34. Upholding the contention, this Court said:

“We think this criticism is well founded. After an order of acquittal has been made the presumption of innocence is further reinforced by that order, and that being so, the trial court’s decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons.”

(emphasis supplied)

35. In Atley v. State of U.P. (AIR 1955 SC 807) this Court

said:

“In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of

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witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated.”

(emphasis supplied)

36. In Aher Raja Khima v. State of Saurashtra (1955) 2 SCR

1285) the accused was prosecuted under Sections 302 and 447

IPC. He was acquitted by the trial court but convicted by the

High Court. Dealing with the power of the High Court against an

order of acquittal, Bose, J. speaking for the majority (2:1) stated:

(AIR p. 220, para 1) “It is, in our opinion, well settled that it is

not enough for the High Court to take a different view of the

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evidence; there must also be substantial and compelling reasons

for holding that the trial court was wrong.”

(emphasis supplied)

37. In Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120, a

three-Judge Bench considered almost all leading decisions on

the point and observed that there was no difficulty in applying

the principles laid down by the Privy Council and accepted by

the Supreme Court. The Court, however, noted that appellate

courts found considerable difficulty in understanding the

scope of the words “substantial and compelling reasons” used

in certain decisions. It was observed inter-alia as follows:

“This Court obviously did not and could not add a condition to Section 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong.”

The Court concluded as follows:

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“9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ‘substantial and compelling reasons’, (ii) ‘good and sufficiently cogent reasons’, and (iii) ‘strong reasons’ are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

38. Again, in M.G. Agarwal v. State of Maharashtra (1963) 2 SCR

405, the point was raised before a Constitution Bench of this

Court. Taking note of earlier decisions, it was observed as

follows:

“17. In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the

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order of acquittal and so, ‘the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons’: vide Surajpal Singh v. State (1952 SCR 193). Similarly in Ajmer Singh v. State of Punjab (1953 SCR 418), it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are ‘very substantial and compelling reasons to do so’. In some other decisions, it has been stated that an order of acquittal can be reversed only for ‘good and sufficiently cogent reasons’ or for ‘strong reasons’. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of Section 423(1) of the Code. All that the said observations are intended to emphasize is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in Sheo Swarup the presumption of innocence in favour of the accused ‘is not certainly weakened by the fact that he has been acquitted at his trial’. Therefore, the test suggested by the expression ‘substantial and compelling reasons’ should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan and Harbans Singh v. State of Punjab (1962 Supp 1 SCR 104) and so, it is not necessary that before reversing a judgment of acquittal, the High Court

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must necessarily characterise the findings recorded therein as perverse.”

(emphasis supplied)

39. Yet in another leading decision in Shivaji Sahabrao Bobade

v. State of Maharashtra (1973 (2) SCC 793) this Court held that

in India, there is no jurisdictional limitation on the powers of

appellate court. “In law there are no fetters on the plenary power

of the appellate court to review the whole evidence on which the

order of acquittal is founded and, indeed, it has a duty to

scrutinise the probative material de novo, informed, however, by

the weighty thought that the rebuttable innocence attributed to

the accused having been converted into an acquittal the homage

our jurisprudence owes to individual liberty constrains the

higher court not to upset the holding without very convincing

reasons and comprehensive consideration.”

40. Putting emphasis on balance between importance of

individual liberty and evil of acquitting guilty persons, this Court

observed as follows:

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“6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro’ the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that ‘a miscarriage of justice

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may arise from the acquittal of the guilty no less than from the conviction of the innocent....’ In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.”

(emphasis supplied)

41. In K. Gopal Reddy v. State of A.P (1979) 1 SCC 355, the

Court was considering the power of the High Court against an

order of acquittal under Section 378 of the present Code. After

considering the relevant decisions on the point it was stated as

follows:

“9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for ‘substantial and compelling reasons’ only and courts used to launch on a search to discover those ‘substantial and compelling reasons’. However, the ‘formulae’ of ‘substantial and compelling reasons’, ‘good and sufficiently cogent reasons’ and ‘strong reasons’ and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan (1961) 3 SCR 120. In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and

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reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case. Occasionally phrases like ‘manifestly illegal’, ‘grossly unjust’, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of A.P., (AIR 1971 SC 460) Bhim Singh Rup Singh v. State of Maharashtra (AIR 1974 SC 286), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that ‘if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court’. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle

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the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.”

(emphasis supplied)

42. In Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC

225, this Court said:

“While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions.”

43. In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57,

referring to earlier decisions, the Court stated:

“7. The paramount consideration of the court should be to avoid miscarriage of justice. A

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miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.”

44. In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the trial

court acquitted the accused but the High Court convicted them.

Negativing the contention of the appellants that the High Court

could not have disturbed the findings of fact of the trial court

even if that view was not correct, this Court observed:

“7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of

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the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not”.

45. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.

(2002) 6 SCC 470, this Court said:

“12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one

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other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.”

46. In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC

606, this Court observed:

“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is

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cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not”.

47. Again in Kallu v. State of M.P. (2006) 10 SCC 313, this Court

stated:

“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”

(emphasis supplied)

48. From the above decisions, in Chandrappa and Ors. v.

State of Karnataka (2007 (4) SCC 415), the following general

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principles regarding powers of the appellate court while

dealing with an appeal against an order of acquittal were

culled out:

(1) An appellate court has full power to review,

reappreciate and reconsider the evidence upon which the

order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no

limitation, restriction or condition on exercise of such power

and an appellate court on the evidence before it may reach

its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and

compelling reasons”, “good and sufficient grounds”, “very

strong circumstances”, “distorted conclusions”, “glaring

mistakes”, etc. are not intended to curtail extensive powers

of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of “flourishes of

language” to emphasise the reluctance of an appellate court

to interfere with acquittal than to curtail the power of the

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court to review the evidence and to come to its own

conclusion.

(4) An appellate court, however, must bear in mind

that in case of acquittal, there is double presumption in

favour of the accused. Firstly, the presumption of innocence

is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed

to be innocent unless he is proved guilty by a competent

court of law. Secondly, the accused having secured his

acquittal, the presumption of his innocence is further

reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the

basis of the evidence on record, the appellate court should

not disturb the finding of acquittal recorded by the trial

court.

49. A person has, no doubt, a profound right not to be

convicted of an offence which is not established by the

evidential standard of proof beyond reasonable doubt. Though

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this standard is a higher standard, there is, however, no

absolute standard. What degree of probability amounts to

“proof” is an exercise particular to each case. Referring to the

interdependence of evidence and the confirmation of one piece

of evidence by another, a learned author says [see “The

Mathematics of Proof II”: Glanville Williams, Criminal Law

Review, 1979, by Sweet and Maxwell, p.340 (342)]:

“The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.”

50. Doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any favourite

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other than truth. To constitute reasonable doubt, it must be

free from an overemotional response. Doubts must be actual

and substantial doubts as to the guilt of the accused persons

arising from the evidence, or from the lack of it, as opposed to

mere vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt, but a fair doubt

based upon reason and common sense. It must grow out of

the evidence in the case.

51. The concepts of probability, and the degrees of it, cannot

obviously be expressed in terms of units to be mathematically

enumerated as to how many of such units constitute proof

beyond reasonable doubt. There is an unmistakable subjective

element in the evaluation of the degrees of probability and the

quantum of proof. Forensic probability must, in the last

analysis, rest on a robust common sense and, ultimately, on

the trained intuitions of the Judge. While the protection given

by the criminal process to the accused persons is not to be

eroded, at the same time, uninformed legitimization of

trivialities would make a mockery of administration of criminal

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justice. This position was illuminatingly stated by

Venkatachaliah, J. (as His Lordship then was) in State of U.P.

v. Krishna Gopal (1988 (4) SCC 302).

52. The above position was highlighted in Krishnan and Anr.

v. State represented by Inspector of Police (2003 (7) SCC 56).

53. Considering the background facts we are of the view that

the High Court has rightly held that Gajanand was exercising

the right of private defence. Therefore, there is no merit in

these appeals which are dismissed accordingly.

……….………………………….J. (Dr. ARIJIT PASAYAT)

……..…………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 1 , 2008

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SATYA NARAIN YADAV Vs GAJANAND

SATYA NARAIN YADAV Vs GAJANAND